The problem

Hate crime are acts of violence or hostility directed at people because of who they are.

The police and CPS record data on hate crimes for five protected characteristics:

disability

transgender identity

race

religion

sexual orientation.

But criminal law does not treat all of those protected characteristics equally. This means someone who is assaulted based on disability is not afforded the same protection as someone assaulted because of their race.

The law responds to hate crime in three ways.

Longer sentences in the Crime and Disorder Act 1998 if an offence was motivated on the basis of race or religion.

Prohibiting conduct that is likely to stir up hatred on grounds of race, religion or sexual orientation in the Public Order Act 1986.

Enhanced sentencing under sections 145-146 Criminal Justice Act 2003 if hostility is motivated by any of the five protected characteristics.

The project

This project was referred to the Law Commission by the Ministry of Justice. Our terms of reference asked us to look only at:

extending the aggravated offences in the Crime and Disorder Act 1998 to apply equally to all five protected characteristics, and

extending the stirring up of hatred offences under the Public Order Act 1986 to apply equally to all five protected characteristics.

We also examined the current “enhanced sentencing” regime applicable to cases where hostility is established. This already applies to all five characteristics and involves similar elements to the aggravated offences.

Our recommendations

We recommended:

New guidance from the Sentencing Council on the sentencing approach in hate crime cases.

That every time enhanced sentencing is applied, it should be recorded on the offender’s criminal record in the Police National Computer (PNC).

A full-scale review of aggravated offences and the enhanced sentencing system to see if they should be retained in their current form or amended. Our terms of reference prevented us from doing this.

If our recommendation for a wider review is not supported by Government, we recommend that the aggravated offences be extended to disability, sexual orientation and transgender identity.

Not extending the stirring up offences on grounds of disability or transgender identity. New offences of stirring up hatred on the grounds of disability and transgender identity would rarely, if ever, be prosecuted, and their communicative or deterrent effect would therefore be negligible.

Result

We published our final report, Hate Crime: Should the Current Offences be Extended?, on 28 May 2014.

We have not received a response from Government.

Since then Hate Crime has continued to rise. In 2016/17, there were 80,393 offences recorded by the police in which one or more hate crime strands were deemed to be a motivating factor.

This was an increase of 29 per cent compared with 2015/16, the largest percentage increase seen since the series began in 2011/12.